September 22, 2023 Activity in CORR 1 3:00 – 6:00Pm

Individualization of Punishment - The lawmakers and judges had the practical task of
making and administering law not only in the light of such theories of free will and
responsibility, but also face to face with the indignation of the community at a particular
offense.

Abused of Judicial Individualization - The law gave judges wide direction to impose
additional properties in view led to the circumstances. This theory gave the judges tyrannical
power that led to abuses. Class discrimination in the administration of justice arose. The
Hebrew right of sanctuary and the medieval truce of God were religiously motivated by
limitations on punishment. Yet such practices as expiation and penance demanded
punishment as a process of balancing account with God. The infliction of the punishment
became a sort of religious ceremony. The canonical courts introduced the modern principle of
individualization, but not on scientific grounds, and this very unscientific individualization
led to serious abuse and injustice. In early American times there was a strong religious
motivation behind the reform movement and for the aid of released prisoners. The very
significant reform instituted by the Quakers in Philadelphia as well as the somewhat
conflicting efforts of Louis Dwight and his society in Boston evidenced religious influence,
though the former were philosophical in origin. But though animated by a kindly Christian
spirit, these reform movements were not concerned with understanding the criminal.
Moreover, these religious reformers though of the process of reform as a process of getting
right with God rather than of seeking social conditions which would prevent the recurrence of
crime.

The Classical School of Penology

The classical theory came about as a direct result of two influences:

1. It came about as a protest against the abuses and discretionary power of judges
2. It was also influenced by the philosophical school of Rousseau

Cesare Beccaria of Italy in his book, “Crime and Punishment,” published in 1764,
bewailed over the cruelties and inequalities of the law and the courts of his time. He holds
that justice consists of equal treatment of all criminals for like offenses, whereas, the courts of
the day were dealing unequally with criminals according to their rank and influence. Beccaria
would have the legislature, not the court, determine the exact punishment appropriate to
each crime. No discretion would thus be left to the judge.

Beccaria’s protests were directed against:

1. Arbitrary penalties given by the judges

2. Uncertainty and obscurity of the laws
3. Defects in criminal procedure in a admission of testimonies
4. Secret accusations
5. Torture
6. Incrimination of witnesses
7. Long pending cases
8. Abuse of power by rich against the poor, etc.
 Jeremy Bentham of England, another exponent of the classical school, also holds that
society must reward those who accept responsibility and punish those who do not, thus
bringing pleasure and pain into the service of society.
The philosophy of the Classical School

The classical school holds:

1. That man is a free moral agent, and that every act of man is of his free will and
accord; 2. That every man is therefore responsible for his acts;
3. That crime can be expiated only by punishment and
4. That the law, not the judge, should determine the punishment to be attached to the
criminal act, and should provide a scale of punishments to be applied equally to all persons
committing the same crime.

Advantages of the Classical School

1. It was easy to administer – The judge was only an instrument to apply the law.
2. It eliminated the arbitrary sentence.

Disadvantages

1. It was unfair – It treated all men as mere digits without regard to difference in
individual natures and circumstances.
2. It was unjust – It made first offenders and recidivists equally punished.
3. It did not individualize punishment.
4. It was the magna carta of the professional criminal in that he knew what was coming
to him and could calculate the risk.
5. It considered only the injury caused, not the state of the mind and nature of the
criminal.

The Neo-Classical School of Penology

Influenced by the French Revolution and the Quakers of the New England states, the
Neo-Classical School, was advocated at the beginning of the 19th century. The French Code of
1819, the principles of the classical school remained intact but the system of defined and
variable punishments was modified. The judge was given direction in certain crimes to vary
punishment between the maximum and the maximum fixed by the law. Under the Code the
judge could not admit extenuating circumstances.

The Classical Theory remained intact in its theory that “every person equally free and
therefore equally responsible.” Since the publication of the French Code of 1819, the struggle
has been to individualize the punishment by setting up varying degrees of responsibility. The
NeoClassical School admitted extenuating circumstances in the criminal himself. It admits too
that minors are incapable of committing crime because they have not reached the age of
responsibility. And it also admits that certain adults are incapable of committing crimes
because of their conditions they are not free to choose.

Result of the Neo-Classical theory

 1. Exempting circumstances admitted
2. Reduction of punishment for partial freedom of the will – only partial responsibility
3. Punishment was mitigated for lack of full responsibility
4. It represented the reaction against the severity of the classical theory of equal
punishment irrespective of circumstances

The Italian or Positivist School of Penology

Cesare Lomroso’s “The Criminal in Relation to Anthropology, Jurisprudence, and

Psychiatry” was published 100 years from the publication of Beccaria’s book, “Crime and
Punishment.” Lombroso, in his book, sought to explain crime in terms of the physical make-up
of the criminal, thus – the vicious soldier was distinguished from the honest soldier by the
extent to which the former was tattooed and by the decency of the designs. In studying the
insane, the patient, not the disease, should be the object of attention.

Enrico Ferri was born in Italy in 1856. Ferri advocated the “Theory of Imputability and
the Denial of the Free Will” in 1878. Ferri contributed to the emphasis of the social factors
such as:

1. Physical factors, including geographical, climate, temperature, etc.

2. The anthropological factors including psychological factors
3. The social factors, including economics and political factors as well as age, sex,
education, religion.

Rafaele Garofalo was born in Naples in 1852, from parents of Spanish origins. Garofalo
thinks that crime can be understood only as it is studied by scientific methods. The criminal is
not a free moral agent, but is the product of his own traits and his circumstances.

Results of the Italian School

1. Emphasis shifted from legal; metaphysical and juristic abstraction to a scientific of

the criminal and the conditions under which he commits crime.
2. Treatment began to be based from study of the criminal.
3. The old purpose of punishment was changed –
4. Retribution was eliminated.
5. Deterrent effect theory modified – does not apply to those who could not foresee
consequences.
6. Rehabilitation re-emphasized but applied with discrimination to certain classes.
7. Protection of society is open to be the primary purpose of treatment.
8. Prevention of crime by early treatment of juveniles

The Modern Clinical School of Penology

This theory advocates the study of the criminal rather than the crime. This school is
interested primarily in the criminal himself in order to determine the conditioning
circumstances that explain his criminality and in order to obtain light upon the problem of
how he should be handled by the social group. While Lombroso emphasized on the physical
characteristics, Ferri – Garafalo emphasized the psychological and social factors, the Clinical
School emphasized the psychological and social factors, but in terms provided by the new
knowledge furnished by the later psychology and sociology.
 Emphasis on social psychology – the influence of interaction between individuals, and
groups, and the relationships between emotional balance and intellectual integrity are
considered.

The Modern Clinical School advocates the idea that the criminal is the product of his
biological inheritance conditioned in his development by the experience of life to which he
has been exposed from early infancy up to the time of the commission of the crime. It also
suggests adapting the treatment of each individual in accordance with the diagnosis obtained
by scientific study of the criminal. This school entirely repudiates retribution, expiation and
intimidation. It gives a new content to the old terms of deterrence, reformation and
protection.